Who Has A Right To Crimea

byVolodymyr G. Butkevych

Khrushchev's 'Gift': The truth behind the calculation

On 22 November 1991 some of the deputies of the Crimean
ASSR Supreme Soviet put forth a proposal to appeal to the
president of the USSR. They wanted to ask the Soviet president
to repeal the 1954 USSR Supreme Soviet Presidium's ukaz on
"The transfer of the Crimean province from the RSFSR to the
UkrSSR."

From 1954 until Ukrainian independence was proclaimed last
year, the judgments of that transfer were unanimous: the
decision of the USSR Supreme Soviet Presidium in 1954 was
historically justified. It was heralded as a testament to
good Ukrainian-Russian relations; a triumph for sober thought;
a recognition of objective realities.

However, these views quickly disappeared following the
Ukrainian declaration of sovereignty in July 1990. The leaders
of the USSR, the CPSU and the Crimean province began to emphasize
that the 1954 ukaz was merely a 'gift' to Ukraine in honour of
the three-hundredth anniversary of Bohdan Khmelnytsky's treaty
with Russia.

The territory of the Crimean Peninsula was transferred to
Ukraine in accordance with the USSR Constitution of 1936. Article
49 of that document outlined the powers of the USSR Supreme
Soviet, among which no mention was made regarding the transfer
of territory. However, Article 14, subsection '(d)' stated that
"ratification of any border changes between Union republics" is
a prerogative of the Union of Soviet Socialist Republics.
Furthermore, Article 31 included the following clause:

"The Supreme Soviet of the USSR cedes the
implementation of all rights granted the Union of Soviet
Socialist Republics, in accordance with Article 14 of the
Constitution. insofar as they are not explicitly included
in the powers granted by the Constitution, to the responsibility
of the subordinate organs of the USSR Supreme Soviet, the
USSR Supreme Soviet Presidium, the USSR Council of Ministers
and all USSR ministries "

Therefore, such an act could only have been legally
carried out by the USSR Supreme Soviet. It must also be
noted that the USSR Supreme Soviet was not granted
arbitrariness in these questions. Thus, Article 18 of
the Constitution included a clause stating that
"territories of Union republics may not be changed
without their consent."

The question of why such attention was paid in the
Constitution to the issue of state territory may arise.
This is due to the fact that the question of transferring
legal and public authority on a given territory of a given
state carries international legal implications. When such
a transfer occurs in violation of international legal norms
or national legislation, it must be considered legally invalid.
It is therefore naive to maintain a question of legality as
the motivation for the transfer of Crimea to Ukraine.

Why, then, and how, was Crimea 'given' to Ukraine?
Answering the question 'why' will help in clarifying
the economic factor considered in the 1954 act, while
answering the question 'how' will explain the legal and
procedural process of the transfer. Only when considering
the two questions in tandem can one arrive at any conclusion
as to whether or not the 1954 act contradicted the norms
of international law. This is a point of view that is
presently maintained.

In order to proclaim state jurisdiction on any territory,
it is not legally sufficient to do so in a legislative act.
The questions of effective government, concerns of the people
living on this territory, and economic responsibilities must
be resolved. Of course, it is more convenient to assert
authority over a territory through the use of repression,
the enforcement of a police state or through terror. However,
these methods invariably lead to economic collapse; and from
economic collapse to a state in crisis.

This was the path chosen by Tsarist Russia in its policy
towards Crimea. Moreover, Soviet Russia in essence repeated
the same mistakes committed by imperial Russia. Their common
and perhaps greatest mistake was to sever the historical ties
between Crimea and Ukraine. The proclamation of Soviet Russian
statehood in Crimea led to this interruption. Henceforth any
relations Ukraine wished to conduct with Crimea were forcibly
channelled through Russia proper. The inefficiency of such a
relationship soon became evident in the Crimean economy and,
more importantly, in the severely decreased material well-being
of the Crimean population. For instance, in 1919, while the
population of Crimea was faced with the threat of famine,
Ukraine sent flour and sugar directly to Crimea, and the
situation was alleviated. However, when Crimea became a
territorial part of the RSFSR, this same aid would have
to be channelled through Russia proper first in order to
arrive there.

Ukraine thus delivered material aid and encouraged the
development of a strong infrastructure for relations with
Crimea. Ukraine also knew that sanctions from Moscow would
soon be forthcoming. Yet, the Soviet Russian government was
unable to liquidate existing economic laws. Thus, many of
the decisions made by Russia ended up being mutually
excluding. For example, Lenin and the RKP(b) Central
Committee adopted a resolution recognising the complete
subordination of Crimea exclusively to the Russian Sovnarkom
and the All-Russian CEC. Meanwhile, on 20 May 1919, the
Deputy Postal Commissar, Liubovich, the Ukrainian Postal
Commissar, Khalepsky, and a Crimean representative, Izvekov,
announced the following:

"Considering the limited number of
postal-telegraph offices in the Soviet territories of
Bessarabia and Crimea and their direct subordination
to Soviet Ukraine, the postal administrations of these
republics are uniting with the People's Postal Commissariat
of Ukraine which will have jurisdiction in these territories."
[46]

Gradually, ties between Ukraine and Crimea begin to
renew and develop. Yet the greatest obstacle, Moscow,
still intended to carry out its own plan for Crimea.

At the May 1921 plenay session of the RKP(b) Central
Committee it was reported that the revolutionary committees
had succeeded in fulfilling their tasks and that Crimea had
officially become a part of the RSFSR. The price exacted for
this success was enormous. Because of the civil war raging
in the territories of the former empire and the miscalculations
of the new Soviet government, a famine besieged Crimea. A
large number of industrial enterprises ceased activity
altogether. However, the civil war was not the sole factor
contributing to the famine. There existed, in addition to
all the other ills of the time, a severe labour shortage.
The Tatar population simply did not take to the cities and
factories, while the Tatars' subsistence-level economic
activity had no consideration in the plans of the Soviet
government. Moreover, a campaign was waged to eliminate
the stratum of small, private businesses and the 'bourgeoisie
resulting in many Ukrainians fleeing persecution and
Russification by moving to the southern provinces of
Ukraine. This left a large economic gap in Crimea, since
these Ukrainians represented the main agricultural force
in Crimea.

For those who remained behind in Crimea, there was a
lack of farming equipment horses and landholdings. To
exacerbate the dilemma, grain, meat and dairy product
deliveries from Ukraine were suddenly decreased. Between
1921-22 more than 150 thousand Crimeans died as a result
of the famine. Despite this, Lenin stated at a meeting of
the Moscow RKP(b) organisation in December 1920:

"Even though after three years of war
we still cannot catch all those loose pigs, it must still
be said that these people have no place in the governing
of a state. We are tackling immeasurably more difficult
tasks. For example, there is a 300 thousand-strong
bourgeoisie in Crimea. This is a source of future
speculation, espionage and all kinds of aid for the
capitalists." [47]

Most of the 'loose pigs' mentioned by Lenin were
indeed eliminated, decreasing the Crimean population
by 300 thousand. In order to replace such great losses
in the labour force (in 1922 there were eleven workable
tractors in all of Crimea), even more developed countries
would require decades. However, the fight against 'banditry'
still continued in Crimea. The campaign publicly rationalised
that the Tatars were 'barbarians' who must be raised to the
level of consciousness embraced by the world revolution.
Ukrainians were similarly depicted as racial hybrids, who
contained a wild mixture of northern tribal and Tatar blood.
Russian workers and peasants in Crimea were described as
'freeloaders and drunkards.' Anyone who dared offer any
opposition to the imposition of the new Soviet regime was
immediately labelled a 'White Guardist' and condemned to
destruction. All of the instances of physical liquidation
carried out by Bolsheviks against the population were then
widely blamed on the 'White Guardists.' In response to these
developments representatives of various nationalities (which
numbered nearly seventy at the time in Crimea) formed a united
front to fight the Bolsheviks: Ukrainians rallied around Rada
supporters; Tatars rallied around the 'Milli-firk'; Jews
rallied around the Bund, while Russians rallied around the
Kadets, Octobrists and other groups. This in turn elicited
a harsh response from the Bolshevik authorities.

Peasants were refused the land they were promised by the
Bolsheviks. Crimea's sowed land decreased by thirty percent,
while peasants were allowed only two desiatyny for their own
use - 6.3 desiatyny in the steppe regions. The plan to
reconstruct Crimean industry that was proposed by the Crimean
party obkom completely fell through and still remained
unrealised at the end of the twenties.

This created the impression that the emissaries sent by
Moscow and the local population lived in completely different
realities. For instance, while the famine struck Crimea, the
Crimean party obkom was devoting all its attention to preparing
and distributing preelection campaign literature. Thus, the
1926 level of industrial output was a mere 58.6% of the 1913
level.

The mishandling of the economy and the demographic and
cultural policies of the Bolsheviks also resulted in the
destruction of the local cultural traditions and lifestyle.
In a very short period of time, there remained only a small
fraction of the formerly indigenous population. The trend
towards the eradication of national minorities lasted until
the beginning of World War ll. In 1926 national minorities
comprised 10.1% of Crimea's population, while by 1939, the
figure dramatically dropped to 5.2%.

The 'mobilisation of forces' designed to collectivise the
peasant in the whole USSR resulted in 104 anti-Soviet
manifestations in 1930. This was quickly answered with
a campaign of mass arrests of kulaks. Ukrainians, Tatars,
Germans, Jews and others began to flee back to Crimea hoping
to avoid arrest. However, their flight only resulted in the
generation of a new campaign of arrests aimed at liquidating
"elements with resettlement aims." Regardless of the fact
that by 1931 the stratum of successful peasantry was all
but eliminated, 1.5% of the peasantry were still considered
to be kulaks and were subsequently arrested or deported to
labour camps. The RKP(b) Central Committee adopted a
resolution on 2 September 1931 which stated:

"2) We are now able to consider
collectivisation in the main a completed process... In
Crimea, 83% of peasant landholdings have already been
collectivised, which translates into 93% of all sowed
peasant land.'" [48]

In order to give primacy to the collectivised farms,
peasants were deprived of their grain and a new wave of
famine began. The peasant was in essence completely broken.
Those who survived remained as mere serfs in the eyes of
the Soviet state.

The working class did not fare much better than the
peasants had. A wave of arrests swept the Crimean working
class in 1931, because of 'saboteurs' who were discovered
at the Kerchensky State Metal Works and the Simferopil
Naval Factory. In 1932 'saboteurs' were again discovered
at the Kerchensky Metallurgical Plant, Saksky Chemical
Plant and various other factories throughout Crimea. The
nascent Crimean working class was thus also practically
liquidated by the beginning of the Second World War.

Whole echelons of new recruits were being sent into
Crimea to replace the eliminated workers and peasants,
which resulted in a Crimean population rise from 714.1
thousand in 1926 to 1.13 million by 1939. The Russian
population concurrently increased from 301.4 thousand
to 558.5 thousand. This meant that for the first time
the Russian population of Crimea outnumbered all other
groups from amongst the indigenous population.

In addition to all of the above, the lack of appropriate
material resources in the established administrative-command
system meant certain doom tor Crimea economy. A large portion
of these resources was transferred by Moscow from Ukraine to
Crimea. This resulted in the demand for certain necessary
changes in Moscow's policy. Moscow soon began to create new
ties or renew long-abandoned ones between Ukraine and Crimea.
The Kerchensky iron ore basin was thus made a responsibility
of the Donetsk-Kryvorih coal and metallurgical administrative
structure. The Simferopil rail station with its huge Dzhankoi
junction was given over to the Stalin Railway, which fell under
the administration based in Dnipropetrovsk. The road transport
system was given over to the joint control of Ukrainian and
Crimean administrations. In this manner a large part of Crimea's
infrastructure gradually came under Ukrainian jurisdiction. Food
production, light industry goods, water and electric energy were
all exported to Crimea from Ukraine.

However, Moscow still did not suspend the campaign to eradicate
the Ukrainian element in Crimean life. Ukrainians in Crimea were
gradually eliminated from positions of authority (by 1927, the
Crimean CEC consisted of only 6.7% Ukrainians). Ukrainians were
also ignored during the rezoning of Crimea's national/regional
borders. In 1930, sixteen regions were created in Crimea; of
these, five were Tatar, one was Jewish, nine were Russian and
one Ukrainian. In 1935, the regions were again reorganised, with
two Tatar regions, six Russian, one German and no Ukrainian ones.
Despite Moscow's administrative arbitrariness towards Ukrainians
in Crimea, relations between Ukraine and Crimea continued to grow
and develop.

It would be erroneous to imply that only Ukrainians suffered
from Moscow's Crimean policies. The process of Russification and
the penetration of the Russian state structure into Crimea also
negatively influenced the development of other nationalities. In
1939 Moscow imposed the Russian alphabet on the Tatar language;
many nationalities were deprived of the right to their own schools,
cultural institutions o press.

The coming of the war dealt a serious blow to the Crimean
economy. The whole peninsula had only 99 high schools and 342
economic enterprises. The population decreased to 780 thousand,
equal to the 1926-27 level. However, the State Defense Committee
headed by Stalin adopted a resolution on 11 May 1944 regarding
the deportation of Crimea's Tatars, Armenians, Bulgarians and
Greeks. As a result, 228,543 people were removed from Crimea,
among them 191,088 Tatars. Ruined by the war, Crimea was
deprived of more than a third of its economic resources.

Crimea, therefore, had neither the material nor the human
resources to realise the program for reconstructing its economy.
In order to cover up the artificially-created demographic vacuum
in Crimea, the Soviet government began to recruit settlers for
Crimea in the RSFSR and Ukraine. Families and even whole collective
farms were forcibly uprooted and transported to Crimea. At the
beginning of 1945, 17,040 families were resettled in Crimea and
from 1950-54, an additional 57 thousand people were moved there.

The resettled collective farms were unable to adapt to their
new surroundings and new conditions. The essentially feudal
environment that existed in Crimea, coupled with a drought
in 1946, forced many of those resettled simply to flee Crimea.
The Crimean party obkom adopted a resolution at its plenary
session in July 1946 in order to prevent any further flight
from Crimea. Nevertheless, in 1947 the stream of refugees
leaving Crimea grew even greater. In October 1947 the party
obkom adopted harsher measures to deal with the fleeing
refugees. This had little effect in decreasing the tide,
and a cyclical dynamic was created, whereby new settlers
were constantly brought in to replace those constantly
escaping. It was thus hardly possible for the authorities
to even dream of any effective plan for economic recovery
under such unstable conditions.

Ukraine came to Crimea's aid at this time, offering
considerable assistance in reconstructing the latter's
beleaguered economy. Ukrainian engineers designed and
built special mining equipment for Crimea; Ukrvodbud
began the reconstruction of the Simferopil and Staro-Krymsk
reservoirs and the North Crimean Canal. Several metallurgical
plants in Ukraine merged with counterparts in Kerch and
Balaklava; industrial production and food were sent to
Crimea from Ukraine.

In essence, the economies of Crimea and Ukraine gradually
became one indivisible mechanism in the post-war years.
However, this merging of economic infrastructures was not
accompanied by a corresponding legislative framework The
disaffection of Crimea's population due to low standards of
living, prompted various leaders of local councils to inform
the Crimean Oblast Executive Committee and the USSR Council
of Ministers that the people were demanding the unification
of Crimea and Ukraine and an end to administrative incompetence.
The authorities could thus no longer afford to ignore the
people of Crimea.

There are those who maintain that "Crimea was given to
Ukraine as a present by Khrushchev," ignoring the fact that
Khrushchev played little or no part in the transfer. At that
very time, Khrushchev was engaged in a bitter and ominous power
struggle. The September 1953 CPSU Central Committee plenary
session saw an entrenchment of Khrushchev's power amongst the
rank and file of Soviet society, but the international community
continued to view Georgy Malenkov as the more influential of the
two figures. In these conditions Khrushchev risked losing all
that he had worked for decades to achieve, and thus devoted all
his attention and energies to his own political survival. He had
risen to the post of party First Secretary at a time when the
Central Committee was replete with individuals whom Khrushchev
could not trust. Moreover, while collecting evidence with which
to attack his pro-Stalinist opponents, Khrushchev had a damaging
card in his hand with Stalin's deportation of the Crimean Tatars.
Thus, a sharpening of tensions in Crimea was not at all conducive
to Khrushchev's political plans. As a result, he distanced himself
from the whole Crimean affair and allowed his rivals to deal with
its solution.

It is evident that Khrushchev's political rivals were no less
cunning than he. Albeit with political manuevering in mind, for
perhaps the first time in Soviet history a matter was approached
in strict accordance to existing legislation (regarding the
nationalities question). Firstly, Crimea was discussed in the
RSFSR Council of Ministers, which, after considering all the
available evidence, concluded as to the necessity "of the
transfer of the Crimean province to the Ukrainian SSR." The
Council of Ministers presented its proposal to the Presidium
of the RSFSR Supreme Soviet, which then consulted the leaders
of the Ukrainian republic regarding the Council's proposition.
Having received tentative agreement from the Ukrainian leaders,
the Presidium adopted the following resolution:

"The Presidium of the RSFSR Supreme Soviet in
conjunction with representatives of the Crimean provincial and
Sevastopol city Councils of workers' deputies has studied the
proposition put forth by the RSFSR Council of Ministers regarding
the transfer of the Crimean province to the Ukrainian SSR.

"Considering the commonality of the economic systems, the
territorial proximity and the close economic and cultural ties
between the Crimean province and the Ukrainian SSR; in addition
considering the agreement of the Ukrainian republic Supreme
Soviet Presidium, the Presidium of the RSFSR Supreme Soviet
finds it purposeful to transfer the Crimean province to the
territory of the Ukrainian Soviet Socialist Republic."
[49]

The RSFSR Supreme Soviet Presidium forwarded a copy of
its resolution to the Ukrainian SSR Presidium.

In reply, on 13 February 1954 the Ukrainian Supreme Soviet
Presidium began deliberations on the question of the former's
resolution. After discussing the matter, the following resolution
was adopted:

"Discussion of the RSFSR Supreme Soviet Presidium resolution
on the question of the transfer of the Crimean province from the
RSFSR to the Ukrainian SSR was proposed for consideration by the
Presidium of the Ukrainian SSR Supreme Soviet. The Presidium of
the Ukrainian SSR Supreme Soviet would like to express its sincere
gratitude to the Presidium of the Russian Soviet Federated Socialist
Republic Supreme Soviet for this generous, noble act on the part
of the brotherly Russian people.

"With a deep sense of elation and arduous gratitude, the
people of Ukraine will greet the decision to transfer Crimea
to the Ukrainian SSR as the latest brilliant manifestation of
the boundless trust and sincere love of the Russian people
towards the people of Ukraine, a new testament to the inviolable
brotherly friendship between the Russian and Ukrainian people.

"The government of Ukraine will undertake the further
development of the Crimean economy.

"The Ukrainian SSR Supreme Soviet Presidium resolves in
reply to the resolution of the Presidium of the Russian Soviet
Federated Socialist Republic Supreme Soviet to:

This resolution was sent to the Presidium of the USSR Supreme
Soviet. Noteworthy is the fact that since the Presidia of both
the Russian and Ukrainian Supreme Soviets adopted these resolutions,
this created a certain 'agreement in principle' between the two
republics. In terms of international law, this in turn made the
resolutions a legally binding set of documents, since they were
adopted by authoritative organs mandated to enact them.

The Ukrainian SSR Supreme Soviet Presidium had acted in strict
accordance with Article 15(b) of the 1937 Ukrainian SSR Constitution.
Concurrently, the RSFSR Supreme Soviet Presidium was in adherence
of Article 16(a) of the RSFSR Constitution. These articles gave
the respective Presidia full power and legal right to conclude
such agreements. Thus, a nullification of the agreement was only
possible in the case of a new agreement being concluded between
the two republics. In addition, this agreement involved the
question of a modification of borders between the two republics.
Since these questions were by law deferred to All-Union organs
of power, the final ratification of the agreement lay with the
USSR Supreme Soviet.

A meeting of the USSR Supreme Soviet Presidium was called for
19 February 1954, with representatives of all the involved parties
being invited as well. The meeting was not attended by Khrushchev
and its outcome was completely beyond his influence. The first to
speak was the Chairman of the RSFSR Supreme Soviet Presidium, M.P.
Tarasov, who stated:

"The Crimean province, as is well known, occupies
the whole Crimean Peninsula and is territorially a part of the
Ukrainian republic, being a natural continuation of the southern
Ukrainian steppes. The economy of the Crimean province is closely
tied to the economy of the Ukrainian republic. Thus out of
geographic and economic considerations. the transfer of the
Crimean province to the brotherly Ukrainian republic is timely
and in accordance with the interests of the Soviet state.

"...The victory of the Great October Revolution further
strengthened the centuries-old friendship of the Ukrainian
and Russian people and has now further strengthened the ties
economic and cultural ties between Crimea and Ukraine."
[50]

At the conclusion of his speech Tarasov read the RSFSR
Presidium Resolution and asked the USSR Supreme Soviet
Presidium to ratify the transfer.

In response, the Chairman of the UkrSSR Supreme Soviet
Presidium, D.S. Korotchenko, announced that the Russian
Presidium's resolution "was greeted by all the people of
Ukraine with gratitude and approval." He also assured the
USSR Supreme Soviet Presidium that, for its part, the
Ukrainian government was ready to devote further attention
to developing Crimea's economy and raising the material
and cultural well-being of the workers in the Crimean
province. [51] Korotchenko in turn
read out the Ukrainian Presidium's resolution from 13
February 1954.

M.M. Shvernyk, a member of the USSR Supreme Soviet
Presidium, added that,

"Without a doubt, this historical act
will serve the cause of the further uninterrupted economic
development of the Crimean province within the Ukrainian
SSR. The Crimean province will develop to even greater
extents, will increase the output of its priceless
vineyards, tobacco and wheat fields, and increase the
productivity of its domesticated animal stock."
[52]

The Chairman of the USSR Supreme Soviet Presidium, K.E.
Voroshilov, concluded the talks, following which the Presidium
ratified an ukaz relating to the transfer

"Considering the commonality of the economies,
the territorial proximity and the close economic and cultural
ties between the Crimean province and the Ukrainian SSR, the
Presidium of the Union of Soviet Socialist Republics Supreme
Soviet resolves:

"To ratify the mutual representation of the Presidium of the
RSFSR Supreme Soviet and the UkrSSR Supreme Soviet regarding the
transfer of the Crimean province from the Russian Soviet Federated
Socialist Republic to the Ukrainian Soviet Socialist Republic."
[53]

However, this was not yet the final word. The Collection of
Ukrainian SSR Laws and Supreme Soviet Presidium Resolutions
includes a legally incorrect addendum on page 33, which states
that, "[t]he Crimean province was transferred from the RSFSR to
the Ukrainian SSR by the Ukaz of the USSR Supreme Soviet Presidium
on 19 February 1954." However, as has been noted above, the USSR
Supreme Soviet Presidium did not have the authority to do so under
the 1936 USSR Constitution. It was the USSR Supreme Soviet alone
that had this authority. At that very time the Third Calling of
the USSR Supreme Soviet had concluded its proceedings and a
pre-election campaign was under way in the USSR. The transfer
of Crimea to Ukraine became the subject of debate with the
electorate at candidate meetings all over the USSR. The first
session of the Fourth USSR Supreme Soviet Calling did not begin
until 20 April 1954.

On 26 April 1954, following a discussion of the transfer, the
USSR Supreme Soviet unanimously ratified the law in the following form:

"The Supreme Soviet of the Union of Soviet
Socialist Republics resolves:

"1. To ratify the USSR Supreme Soviet Presidium Ukaz of 19
February 1954 concerning the transfer of the Crimean province
from the RSFSR to the Ukrainian Soviet Socialist Republic.

"2. To introduce appropriate amendments to articles 23 and
24 of the Constitution of the USSR."
[54]

This, therefore, was the final ratification. As is evident,
Khrushchev had very little to do with its passing. Others
maintain that "Russia gave Ukraine the Crimean province as a
gift in commemoration of the three-hundredth anniversary of
the 'union of Ukraine and Russia." The adopted resolution
concerning the transfer made no mention of the transfer being
characterised as a 'gift'.

Attempts to find any violation of international legal norms
in the transfer legislation have also been invariably fruitless.
Contemporary international law recognises the legality of a
voluntary transfer of sovereignty over a given territory
between two governments according to an agreement of the two.
The only prerequisite stipulated by international law demands
that the state receiving territory must provide inhabitants
of that territory the opportunity to choose either to maintain
their former or their new citizenship. In the case of the
Crimean transfer, however, this prerequisite did not apply
because Article 21 of the 1936 USSR Constitution stated that,
[a] single Union citizenship is established for all citizens
of the USSR."

There is, nevertheless, one further important consideration
regarding the 1954 transfer of the Crimean province to Ukraine.
Presently, many of those who are in support of returning Crimea
to Russia are hopeful of a referendum. Yet, according to the
norms of international law, territorial questions involve the
holding of a plebiscite. The terms 'plebiscite' and 'referendum'
are often mistakenly employed interchangeably. Although the two
processes do indeed have much in common, there are as many
differences as there are shared traits between the two.

Juridical science and legal practice define referendum as
concerning national questions, while plebiscite refers to
international questions of law. The aim of the referendum is
to resolve questions of a constitutional and legislative nature.

Concerning territorial questions, a referendum can legally
resolve only questions of an internal, territorial-administrative
character. Questions regarding the transfer of territories from
one state to another may only be resolved by a referendum when
the process involves a voluntary agreement between the states
involved in the transfer and only if the inhabitants of the
given territory do not protest such a decision.

Those, who are promoting the transfer of Crimea to Russia
are attempting to squeeze the matter under the rubric of a
territorial-administrative question. However, when all
interested parties expressed their views on Crimea, especially
following the declaration of Ukraine's independence, the
possibility of resolving the matter through a referendum
was categorically dismissed. Under the present conditions,
which find Ukraine as an independent state, it is possible
to resolve the question exclusively through a plebiscite on
the basis of international legal norms. The mechanism for
holding a plebiscite is substantially different from the one
that governs the holding of a referendum. The plebiscite must
be carried out according to these, and not national, norms;
otherwise the results can be declared invalid and not legally
binding.

What are the necessary conditions under which a plebiscite
can be held? In, the first place, international law considers
states, nations and their peoples as legal subjects under a
plebiscite. The nation and people in question must occupy a
common territory, have a common historical past, language,
culture and the common aim of self-determination. It is clearly
evident that even this first condition is not applicable in the
Crimean case.

It is possible to cite yet more examples as evidence indicating
the inapplicability of a plebiscite in Crimea. The overriding factor
remains that a separate, singular nation has never formed in Crimea,
and thus the only legal subject of a plebiscite is absent. The more
than million people who were resettled in Crimea in the forty-five
years after World War ll cannot be considered a nation. This in turn
is not to imply that the population of Crimea is without any
international legal rights or defence. Effective in Crimea are all
the conditions of international pacts, conventions and other human
rights documents that apply to Ukraine as a member of the international
community.

One can postulate that theoretically, the population of Crimea
(including Russians, Ukrainians and Crimean Tatars as the majority
of that population) could unanimously endorse the creation of an
independent, sovereign state in Crimea. In such a case, how could
this be achieved according to international law? International law
requires the establishment of optimal democratic conditions for the
holding of a plebiscite. In order for this to be realised, there
must be complete stability on the territory in question, as well
as an absence of any military presence; this would mean the withdrawal
of all presently stationed troops in Crimea. Such a condition is
necessary not simply in order to avoid the electoral influence that
such troops would have (as representing interests from outside Crimea,
since the majority of the military in Crimea does not consist of
Crimeans); but also in order to avoid the possibility of using military
coercion to affect the outcome of the plebiscite.

The present government in Crimea must also suspend its activity
and dissolve itself, due to the fact that it has existed under a
former regime and could not be honestly expected to carry out a
fair plebiscite. In its place, it would be necessary to establish
a provisional governmental structure with representatives
democratically elected exclusively from the local population.
This provisional government would be solely responsible for the
complete plebiscite process. Once the plebiscite is held, this
provisional government would then itself dissolve and following
further democratic elections a new government and administrative
infrastructure could be formed

Any external influence in the preparation and holding of the
plebiscite must be categorically prohibited The plebiscite cannot
be held if borders with contiguous states are not finalised and
these states are not officially informed of Crimea s territorial
intentions.

The legal rights and responsibilities of the electorate must
also be clearly defined under appropriate legislation. The wording
of the plebiscite must be succinctly formed in order that each
voter could clearly understand, what choice he or she is being
asked to make. The voter must also be aware that his vote concerns
only the resolution of the territorial question. Thus, any wording
on the plebiscite ballot that does not directly pertain to the
territorial question is inadmissible. Moreover, no additional
ballots, intended to resolve any other questions, may be added
to the territorial ballot. According to international law, there
may be only one ballot issued to every registered voter.

The right to participate in the plebiscite is given to all
legal citizens of the territory in question. Therefore, a
plebiscite is inherently impossible until such a time as all
Tatars, Ukrainians, Russians and others who had been forcibly
removed from Crimea are allowed to return to their native
territory. This also includes all those, who due to persecution
or a threat to their safety, were forced to flee Crimea in order
to ensure their lives.

The structure to be created for the organisation and carrying
out of the plebiscite, as well as the police force that must be
present to maintain order, must be created from amongst the local
population as well. A working system of control must also be in
place. It is imperative that the whole process meet with accepted
international legal norms. In the event that local authorities are
unable to meet this condition, they have the right to seek the aid
of the United Nations in order to ensure the strict legality of the
plebiscite and the determination of its results. Representatives of
the international mass media must be allowed to follow the process
of the plebiscite in order to attest to its objectivity.

A plethora of other conditions relates to the holding of a
democratic plebiscite. As noted above, however, a plebiscite
cannot legally be held in Crimea since the population of Crimea
is not considered a legal subject for determining the transfer
of public authority on a given territory, or between one state
and another. The only legal subject that has the right lo do
this in the Crimean case is Ukraine.

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About The Author

Volodymyr G. Butkevych, a Ph.D. in juridical studies,
currently heads the Ukrainian Institute of International
Relations' Department of International Law. He is also
the Vice-President of the (former Soviet) International
Law Association. His studies have focused on the protection
of human rights in the USSR and in Ukraine, as well as on
the chasm between Soviet legal standards and international
norms. In addition, Butkevych is the Chairman of the
International Human Rights Conference's Organisational
Committee. The Conference is held annually in Kyiv.

About the Editor

Eugene S. Kachmarsky, an M.A. in political science
specialising in eastern Europe and the former USSR, is
a graduate of the University of Toronto. He is currently
the editor of the English-language monthly newspaper,
Ukrainian Echo.